Fracking in Louisiana: The Missing Process/Land Use Distinction in State Preemption and Opportunities for Local Participation

• Author: Alex Ritchie
• Position: Associate Professor of Law, Karelitz Chair in Oil and Gas Law, University of New Mexico School of Law, B.S.B.A. 1993, Georgetown University, J.D. 1999, University of Virginia.
• Pages: 809-862

Fracking in Louisiana: The Missing Process/Land Use

Distinction in State Preemption and Opportunities for

Local Participation

Alex Ritchie

TABLE OF CONTENTS

Introduction .................................................................................. 810

I. Background: The Fracking Dispute in St. Tammany Parish ........ 816

II. Preemption Statutes and Decisions in Most States Preserve

At Least Some Land Use Authority.............................................. 819

A. The New Texas Preemption Statute ....................................... 819

B. The New Oklahoma Preemption Statute ................................ 823

C. Court Decisions in Other States Recognize the

Process/Land Use Distinction ................................................ 824

III. Louisiana at the Extreme of State Control .................................... 829

A. Reserving Land as Justification for Local Control................. 829

B. Louisiana Statutes Preempt Land Use Authority ................... 834

IV. Louisiana’s Home Rule Authority Fails to Support Local

Regulation of the Location of Wells ............................................. 837

A. The Road to Home Rule in Louisiana .................................... 838

B. Judicial Invigoration of Louisiana Home Rule ...................... 841

C. Judicial Re-marginalization of Louisiana Home Rule ........... 843

V. Process and Land Use Overlap in the Oil and Gas Context ......... 847

VI. Compromise and Participation as Alternatives to Local

Control .......................................................................................... 853

A. Cooperative Governance or Compromise .............................. 853

Copyright 2016, by ALEX RITCHIE.

 Associate Professor of La w, Karelitz Chair in Oil and Gas Law, University

of New Mexico School of Law, B.S.B.A. 1993, Georgetown University, J.D. 1999,

University of Virginia. The Author is grateful to Kenneth Murchison, Visiting

Professor of Law, University of New Mexico School of Law, Emeritus Professor,

Paul M. Hebert Law Center, Louisiana State University, for his thoughtful

comments and discussion of home rule in Louisiana. The Author also thanks

Ernesto A. Longa, Professor of Law Librarianship, and Alexandra R. Siek, Law

Librarian, University of New Mexico School of Law, for their research assistance.

810 LOUISIANA LAW REVIEW [Vol. 76

B. Local Participation in the Drilling Decision: The

Natural Resources Article to the Louisiana Constitution ....... 856

Conclusion .................................................................................... 862

INTRODUCTION

Oil and gas development is testing and defining the boundaries of local

government authority and autonomy as concerned municipal entities and

citizens seek to limit oil and gas operations. Advances in high-volume

hydraulic fracturing have increased domestic oil and gas production to

historic levels.1 At the same time, national and international concerns about

irreversible man-made global warming have focused on fossil fuel

combustion.2 National groups opposed to continued reliance on oil and gas

as an energy source have found willing partners in many local governments

and their citizens, who are anxious about the local implications of drilling

and fracking.3 Many citizens and environmental organizations coalesce

around local environmental risks such as the potential degradation of ground

and surface waters and air quality, seismic activity, and social and economic

costs on the local area—including increased truck traffic, road damage,

noise, housing shortages, and boom and bust cycles.4 Particularly in urban

or suburban areas, voters may also perceive drilling and fracking as a threat

to property values, aesthetics, and lifestyles.

1. The United States has become the largest producer of petroleum and natural

gas in the world, surpassing Russia in natural gas production and Saudi Arabia in

oil production. See Adam Sieminski, Presentation, Oil and Gas Outlook 14 (Oct.

16, 2015), available at http://www.eia.gov/pressroom/presentatio ns/sieminski

_10162015.pdf [perma.cc/F2V7-TUD2].

2. See Climate Change and President Obama’s Action Plan, WHITEHOUSE

.GOV, https://www.whitehouse.gov/climate-change [p erma.cc/2GGM-CMWK] (last

visited Dec. 27, 2015) (stating that carbon pollution is the biggest driver of climate

change).

3. See, e.g., Fracking: Community Defense, NRDC, http://www.nrdc.org/land

/fracking-community-defense/?gclid=Cj0KEQiAuremBRCbtr-1qJnKi-4BEiQAh0

x08G5Ia-q4N-5_wpQYvDYFWXlAtXaquuwKRYXZB2PpnUIaAjGB8P8HAQ

[perma.cc/72ZB-65D6] (last visited Nov. 17, 2015) (“The Community Fracking

Defense Campaign brings the grassroots power of communities facing fracking

together with the expertise of NRDC’s polic y and legal team.”).

4. For a discussion of various potential environmental risks and recommended

regulatory responses, see Hanna J. Wiseman, Risk and Response in Fracturing

Policy, 84 U. COLO. L. REV. 729 (2013).

2016] FRACKING IN LOUISIANA 811

Now that fracking has become a topic of wider public interest, at least

to the media and the relatively informed public,5 local government efforts to

control oil and gas operations appear to be a modern phenomenon. These

recent efforts are, however, little more than “old wine in new bottles.” The

Cities of Winkfield and Oxford, Kansas, adopted municipal oil and gas

ordinances in the late 1920s that focused on the prevention of waste and the

protection of correlative rights,6 and cases that upheld the application of

zoning ordinances to oil and gas operations began appearing in the 1930s.7

Because neither fracking nor the local regulation of oil and gas

operations are particularly new,8 what has changed may be a matter of

degree. As advances in technology unlock new resources, drilling and

completion activities intensify in new areas that are rich in shale resources.9

5. Those who study oil and gas issues or work in related fields may be

particularly aware of the media coverage, but a 2013 study concluded that the

American populace is largely unaware o f and undecided about hydraulic fracturing. See

Hilary Boudet et al., “F racking” Controversy and Communication: Using National

Survey Data to Understanding Public Perceptions of Hydraulic Fracturing, 65 ENER GY

POL’Y 57, 63 (2014), available at http://dx.doi.org/10.1016/j.enpol.2013.10.017

[perma.cc/Z88X-VQEH].

6. See Bruce M. Kramer, The State of State and Local Government Relations

as It Impacts the Regulation of Oil and Gas Operations: Has the Shale Revolution

Really Changed the Rules of the Game?, 29 J. LAND USE & ENVTL. LAW 69, 71–

72 (2013).

7. See, e.g., Anderson-Kerr, Inc. v. Van Meter, 19 P.2d 1068, 1074 (Okla.

1933) (“The governing body of the city has a right to regulate the oil industry and

the drilling of wells within its corporate limits or to prohibit them from being

drilled in certain designated territory.”); Van Meter v. Westgate Oil Co., 32 P.2d

719, 721 (Okla. 1934).

8. Hydraulic fracturing, meaning the use of water to fracture rock

formations to produce oil and gas, “was first tested in 1903 and first used

commercially in 1948.” Thomas E. Kurth, Michael J. Mazzone, Mary S. Mendoza

& Christopher S. Kulander, American Law and Jurisprudence on Fracing, at 1,

3, NW. PRITZKER SCH. L. (2012), https://www.law.northwestern.edu/research-

faculty/searlecenter/workingpapers/documents/Kulander_2012_Fracing_Paper.p

df [perma.cc/NN88-V7UA]. Horizontal drilling combined with slick-water

hydraulic fracturing at sufficient pressure to commercially produce shale and

other tight formations began around 1997 in the Barnett Shale, reinvigorating the

oil and gas industry. See J. Lanier Yeates & Andrew M. Abrameit, Current Issues

In Oil & Gas Shale Development, 58 ANN. INST. MIN. L. 146, 146 (2011).

9. See, e.g., Growth in U.S. Energy Production Outstrips Consumption Growth,

U.S. ENERGY INFO. ADMIN. (Dec. 5, 2012), http://www.eia.gov/pressroom/releases

/press379.cfm [perma.cc/D8SH-8EFX] (describing growth in oil production from

shale and other tight formations (Figure 1) and growth in shale gas production (Figure

3)).